[Federal Register Volume 72, Number 192 (Thursday, October 4, 2007)]
[Rules and Regulations]
[Pages 56623-56628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19327]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2007-0835-200740(a); FRL-8475-4]
Approval of Implementation Plans of Kentucky: Clean Air
Interstate Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a revision to the Kentucky State
Implementation Plan (SIP) submitted on July 19, 2007. This revision
addresses the requirements of EPA's Clean Air Interstate Rule (CAIR),
promulgated on May 12, 2005 and subsequently revised on April 28, 2006,
and December 13, 2006. EPA has determined that the SIP revision fully
implements the CAIR requirements for Kentucky. Therefore, as a
consequence of the SIP approval, EPA will also withdraw the CAIR
Federal Implementation Plans (FIPs) concerning sulfur dioxide
(SO2), nitrogen oxides (NOX) annual, and
NOX ozone season emissions for Kentucky. The CAIR FIPs for
all States in the CAIR region were promulgated on April 28, 2006, and
subsequently revised on December 13, 2006.
CAIR requires States to reduce emissions of SO2 and
NOX that significantly contribute to, and interfere with
maintenance of, the national ambient air quality standards for fine
particulates and/or ozone in any downwind state. CAIR establishes State
budgets for SO2 and NOX and requires States to
submit SIP revisions that implement these budgets in States that EPA
concluded did contribute to nonattainment in downwind states. States
have the flexibility to choose which control measures to adopt to
achieve the budgets, including participating in the EPA-administered
cap-and-trade programs. In the SIP revision that EPA is approving,
Kentucky would meet CAIR requirements by participating in the EPA-
administered cap-and-trade programs addressing SO2,
NOX annual, and NOX ozone season emissions.
DATES: This direct final rule is effective December 3, 2007 without
further notice, unless EPA receives adverse comment by November 5,
2007. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2007-0835, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (404) 562-9019.
4. Mail: ``EPA-R04-OAR-2007-0835'', Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery or Courier: Heidi Lesane, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. 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 to 4:30, excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2007-0835''. 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 e-mail, 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 e-mail comment directly to EPA without
going through www.regulations.gov, your e-mail 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 and any form of encryption and should 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 Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions concerning
today's action, please contact Heidi LeSane, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9074. Mrs. LeSane can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Taking?
II. What Is the Regulatory History of CAIR and the CAIR FIPs?
III. What Are the General Requirements of CAIR and the CAIR FIPs?
IV. What Are the Types of CAIR SIP Submittals?
V. Analysis of Kentucky's CAIR SIP Submittal
A. State Budgets for Allowance Allocations
B. CAIR Cap-and-Trade Programs
C. Applicability Provisions for non-EGU NOX SIP Call
Sources
D. NOX Allowance Allocations
E. Allocation of NOX Allowances From the Compliance
Supplement Pool
F. Individual Opt-In Units
VI. Final Action
VII. Statutory and Executive Order Reviews
[[Page 56624]]
I. What Action Is EPA Taking?
EPA is approving a revision to Kentucky's SIP, submitted on July
19, 2007. In its SIP revision, Kentucky meets CAIR requirements by
requiring certain electric generating units (EGUs) to participate in
the EPA-administered State CAIR cap-and-trade programs addressing
SO2, NOX annual, and NOX ozone season
emissions. EPA has determined that the SIP as revised meets the
applicable requirements of CAIR. As a consequence of this SIP approval,
EPA will also issue a final rule to withdraw the FIPs concerning
SO2, NOX annual, and NOX ozone season
emissions for Kentucky. This action will delete and reserve 40 CFR
52.940 and 40 CFR 52.941. The withdrawal of the CAIR FIPs for Kentucky
is a conforming amendment that must be made once the SIP is approved
because EPA's authority to issue the FIPs was premised on a deficiency
in the SIP for Kentucky. Once the SIP is fully approved, EPA no longer
has authority for the FIPs. Thus, EPA will not have the option of
maintaining the FIPs following the full SIP approval. Accordingly, EPA
does not intend to offer an opportunity for a public hearing or an
additional opportunity for written public comment on the withdrawal of
the FIPs.
II. What Is the Regulatory History of the CAIR and the CAIR FIPs?
The CAIR was published by EPA on May 12, 2005 (70 FR 25162). In
this rule, EPA determined that 28 States and the District of Columbia
contribute significantly to nonattainment and interfere with
maintenance of the national ambient air quality standards (NAAQS) for
fine particulates (PM2.5) and /or 8-hour ozone in downwind
States in the eastern part of the country. As a result, EPA required
those upwind States to revise their SIPs to include control measures
that reduce emissions of SO2, which is a precursor to
PM2.5 formation, and/or NOX, which is a precursor
to both ozone and PM2.5 formation. For jurisdictions that
contribute significantly to downwind PM2.5 nonattainment,
CAIR sets annual State-wide emission reduction requirements (i.e.,
budgets) for SO2 and annual State-wide emission reduction
requirements for NOX. Similarly, for jurisdictions that
contribute significantly to 8-hour ozone nonattainment, CAIR sets
State-wide emission reduction requirements for NOX for the
ozone season (May 1st to September 30th). Under CAIR, States may
implement these reduction requirements by participating in the EPA-
administered cap-and-trade programs or by adopting any other control
measures.
CAIR explains to subject States what must be included in SIPs to
address the requirements of section 110(a)(2)(D) of the Clean Air Act
(CAA) with regard to interstate transport with respect to the 8-hour
ozone and PM2.5 NAAQS. EPA made national findings, effective
on May 25, 2005, that the States had failed to submit SIPs meeting the
requirements of section 110(a)(2)(D). The SIPs were due in July 2000, 3
years after the promulgation of the 8-hour ozone and PM2.5
NAAQS. These findings started a 2-year clock for EPA to promulgate a
FIP to address the requirements of section 110(a)(2)(D). Under CAA
section 110(c)(1), EPA may issue a FIP anytime after such findings are
made and must do so within two years unless a SIP revision correcting
the deficiency is approved by EPA before the FIP is promulgated.
On April 28, 2006, EPA promulgated FIPs for all States covered by
CAIR in order to ensure the emissions reductions required by CAIR are
achieved on schedule. Each CAIR State is subject to the FIPs until the
State fully adopts, and EPA approves, a SIP revision meeting the
requirements of CAIR. The CAIR FIPs require EGUs to participate in the
EPA-administered CAIR SO2, NOX annual, and
NOX ozone season trading programs, as appropriate. The CAIR
FIP SO2, NOX annual, and NOX ozone
season trading programs impose essentially the same requirements as,
and are integrated with, the respective CAIR SIP trading programs. The
integration of the FIP and SIP trading programs means that these
trading programs will work together to create effectively a single
trading program for each regulated pollutant (SO2,
NOX annual, and NOX ozone season) in all States
covered by the CAIR FIP or SIP trading program for that pollutant. The
CAIR FIPs also allow States to submit abbreviated SIP revisions that,
if approved by EPA, will automatically replace or supplement certain
CAIR FIP provisions (e.g., the methodology for allocating
NOX allowances to sources in the State), while the CAIR FIP
remains in place for all other provisions.
On April 28, 2006, EPA published two additional CAIR-related final
rules that added the States of Delaware and New Jersey to the list of
States subject to CAIR for PM2.5 and announced EPA's final
decisions on reconsideration of five issues, without making any
substantive changes to the CAIR requirements.
III. What Are the General Requirements of CAIR and the CAIR FIPs?
CAIR establishes State-wide emission budgets for SO2 and
NOX and is to be implemented in two phases. The first phase
of NOX reductions starts in 2009 and continues through 2014,
while the first phase of SO2 reductions starts in 2010 and
continues through 2014. The second phase of reductions for both
NOX and SO2 starts in 2015 and continues
thereafter. CAIR requires States to implement the budgets by either:
(1) Requiring EGUs to participate in the EPA-administered cap-and-trade
programs; or (2) adopting other control measures of the State's
choosing and demonstrating that such control measures will result in
compliance with the applicable State SO2 and NOX
budgets.
The May 12, 2005 and April 28, 2006 CAIR rules provide model rules
that States must adopt (with certain limited changes, if desired) if
they want to participate in the EPA-administered trading programs.
With two exceptions, only States that choose to meet the
requirements of CAIR through methods that exclusively regulate EGUs are
allowed to participate in the EPA-administered trading programs. One
exception is for States that adopt the opt-in provisions of the model
rules to allow non-EGUs individually to opt into the EPA-administered
trading programs. The other exception is for States that include all
non-EGUs from their NOX SIP Call trading programs in their
CAIR NOX ozone season trading programs.
IV. What Are the Types of CAIR SIP Submittals?
States have the flexibility to choose the type of control measures
they will use to meet the requirements of CAIR. EPA anticipates that
most States will choose to meet the CAIR requirements by selecting an
option that requires EGUs to participate in the EPA-administered CAIR
cap-and-trade programs. For such States, EPA has provided two
approaches for submitting and obtaining approval for CAIR SIP
revisions. States may submit full SIP revisions that adopt the model
CAIR cap-and-trade rules. If approved, these SIP revisions will fully
replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP
revisions. These SIP revisions will not replace the CAIR FIPs; however,
the CAIR FIPs provide that, when approved, the provisions in these
abbreviated SIP revisions will be used instead of or in conjunction
with, as appropriate, the corresponding provisions of the CAIR FIPs
(e.g., the
[[Page 56625]]
NOX allowance allocation methodology).
A State submitting a full SIP revision may either adopt regulations
that are substantively identical to the model rules or incorporate by
reference the model rules. CAIR provides that States may only make
limited changes to the model rules if the States want to participate in
the EPA-administered trading programs. A full SIP revision may change
the model rules only by altering their applicability and allowance
allocation provisions to:
1. Include NOX SIP Call trading sources that are not
EGUs under CAIR in the CAIR NOX ozone season trading
program;
2. Provide for allocation of NOX annual or ozone season
allowances by the State, rather than the Administrator of the EPA or
the Administrator's duly authorized representative (Administrator), and
using a methodology chosen by the State;
3. Provide for State allocation of NOX annual allowances
from the compliance supplement pool (CSP) using the State's choice of
allowed, alternative methodologies; or
4. Allow units that are not otherwise CAIR units to opt
individually into the CAIR SO2, NOX annual, or
NOX ozone season trading programs under the opt-in
provisions in the model rules.
An approved CAIR full SIP revision addressing EGUs' SO2,
NOX annual, or NOX ozone season emissions will
replace the CAIR FIP for that State for the respective EGU emissions.
V. Analysis of Kentucky's CAIR SIP Submittal
A. State Budgets for Allowance Allocations
The CAIR NOX annual and ozone season budgets were
developed from historical heat input data for EGUs. Using these data,
EPA calculated annual and ozone season regional heat input values,
which were multiplied by 0.15 pounds per million British thermal units
(lb/mmBtu), for phase 1, and 0.125 lb/mmBtu, for phase 2, to obtain
regional NOX budgets for 2009-2014 and for 2015 and
thereafter, respectively. EPA derived the State NOX annual
and ozone season budgets from the regional budgets using State heat
input data adjusted by fuel factors.
The CAIR State SO2 budgets were derived by discounting
the tonnage of emissions authorized by annual allowance allocations
under the Acid Rain Program under title IV of the CAA. Under CAIR, each
allowance allocated in the Acid Rain Program for the years in phase 1
of CAIR (2010 through 2014) authorizes 0.50 ton of SO2
emissions in the CAIR trading program, and each Acid Rain Program
allowance allocated for the years in phase 2 of CAIR (2015 and
thereafter) authorizes 0.35 ton of SO2 emissions in the CAIR
trading program.
In this action, EPA is approving Kentucky's SIP revision that
adopts the budgets established for the Commonwealth in CAIR, i.e.,
83,205 (2009-2014) and 69,337 (2015-thereafter) tons for NOX
annual emissions, 36,109 (2009-2014) and 30,651 (2015-thereafter) tons
for NOX ozone season emissions, and 188,773 (2010-2014) and
132,141 (2015-thereafter) tons for SO2 emissions. Kentucky's
SIP revision sets these budgets as the total amounts of allowances
available for allocation for each year under the EPA-administered cap-
and-trade programs.
B. CAIR Cap-and-Trade Programs
The CAIR NOX annual and ozone-season model trading rules
both largely mirror the structure of the NOX SIP Call model
trading rule in 40 CFR part 96, subparts A through I. While the
provisions of the NOX annual and ozone-season model rules
are similar, there are some differences. For example, the
NOX annual model rule (but not the NOX ozone
season model rule) provides for a CSP, which is discussed below and
under which allowances may be awarded for early reductions of
NOX annual emissions. As a further example, the
NOX ozone season model rule reflects the fact that the CAIR
NOX ozone season trading program replaces the NOX
SIP Call trading program after the 2008 ozone season and is coordinated
with the NOX SIP Call program. The NOX ozone
season model rule provides incentives for early emissions reductions by
allowing banked, pre-2009 NOX SIP Call allowances to be used
for compliance in the CAIR NOX ozone-season trading program.
In addition, States have the option of continuing to meet their
NOX SIP Call requirement by participating in the CAIR
NOX ozone season trading program and including all their
NOX SIP Call trading sources in that program.
The provisions of the CAIR SO2 model rule are also
similar to the provisions of the NOX annual and ozone season
model rules. However, the SO2 model rule is coordinated with
the ongoing Acid Rain SO2 cap-and-trade program under CAA
title IV. The SO2 model rule uses the title IV allowances
for compliance, with each allowance allocated for 2010-2014 authorizing
only 0.50 ton of emissions and each allowance allocated for 2015 and
thereafter authorizing only 0.35 ton of emissions. Banked title IV
allowances allocated for years before 2010 can be used at any time in
the CAIR SO2 cap-and-trade program, with each such allowance
authorizing 1 ton of emissions. Title IV allowances are to be freely
transferable among sources covered by the Acid Rain Program and sources
covered by the CAIR SO2 cap-and-trade program.
EPA also used the CAIR model trading rules as the basis for the
trading programs in the CAIR FIPs. The CAIR FIP trading rules are
virtually identical to the CAIR model trading rules, with changes made
to account for federal rather than state implementation. The CAIR model
SO2, NOX annual, and NOX ozone season
trading rules and the respective CAIR FIP trading rules are designed to
work together as integrated SO2, NOX annual, and
NOX ozone season trading programs.
In the SIP revision, Kentucky chooses to implement its CAIR budgets
by requiring EGUs to participate in EPA-administered cap-and-trade
programs for SO2, NOX annual, and NOX
ozone season emissions. Kentucky has adopted a full SIP revision that
adopts, with certain allowed changes discussed below, the CAIR model
cap-and-trade rules for SO2, NOX annual, and
NOX ozone season emissions.
C. Applicability Provisions for Non-EGU NOX SIP Call Sources
In general, the CAIR model trading rules apply to any stationary,
fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion
turbine serving at any time, since the later of November 15, 1990 or
the start-up of the unit's combustion chamber, a generator with
nameplate capacity of more than 25 megawatt electrical (MWe) producing
electricity for sale.
States have the option of bringing in, for the CAIR NOX
ozone season program only, those units in the State's NOX
SIP Call trading program that are not EGUs as defined under CAIR. EPA
advises States exercising this option to add the applicability
provisions in the State's NOX SIP Call trading rule for non-
EGUs to the applicability provisions in 40 CFR 96.304 in order to
include in the CAIR NOX ozone season trading program all
units required to be in the State's NOX SIP Call trading
program that are not already included under 40 CFR 96.304. Under this
option, the CAIR NOX ozone season program must cover all
large industrial boilers and combustion turbines, as well as any small
EGUs (i.e. units serving a generator with a nameplate capacity of 25
MWe or less)
[[Page 56626]]
that the State currently requires to be in the NOX SIP Call
trading program.
Kentucky has chosen to expand the applicability provisions of the
CAIR NOX ozone season trading program to include all non-
EGUs in the State's NOX SIP Call trading program. Kentucky
has committed to revising the applicability section in its CAIR
NOX ozone season rule in order to clarify that, as intended
by the State, units subject to its NOX SIP Call program and
brought into its CAIR program through the allowed expansion of the CAIR
NOX ozone season applicability provisions are to be treated
as CAIR NOX ozone season units and certain definitions from
401 KAR 51:001 apply to the provisions that bring these units into the
CAIR program. EPA determined after review of Kentucky's final rules,
and after Kentucky had adopted other necessary revisions to its CAIR
rules, that these provisions needed clarification. However, while the
clarifications are needed, EPA interprets Kentucky's current rule to
provide that the NOX SIP Call units are subject to the
requirements for CAIR NOX ozone season units and that the
NOX SIP Call definitions are used in applying the
applicability provisions that bring in NOX SIP Call units.
In addition, Kentucky has committed to correct two citation references
in its CAIR NOX ozone season allowance allocation
methodology needed in order to reference correctly its applicability
section. EPA interprets Kentucky's current rule as applying the correct
references.
Kentucky has also committed to revising the definitions of
``commence commercial operation'' and ``commence operation'' in its
CAIR NOX ozone season rule in order to clarify the
deadlines, for meeting monitoring and reporting requirements, that
apply to the NOX SIP Call units that are brought into the
CAIR program but do not serve generators producing electricity for
sale, as intended by the State. EPA determined after review of
Kentucky's final rules, and after Kentucky had adopted other necessary
revisions to its CAIR rules, that these provisions needed
clarification.
EPA has outlined these necessary revisions in a technical support
document. EPA received a letter from Kentucky dated September 11, 2007,
that provides a commitment to make these rule revisions in its CAIR
rules in 2008. Specifically, in the September 11, 2007, letter,
Kentucky commits to make the revisions discussed above to its CAIR
NOX Ozone Season trading rule, 401 KAR 51:220.
D. NOX Allowance Allocations
Under the NOX allowance allocation methodology in the
CAIR model trading rules and in the CAIR FIP, NOX annual and
ozone season allowances are allocated to units that have operated for
five years, based on heat input data from a three-year period that are
adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for
oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR
FIP also provide a new unit set-aside from which units without five
years of operation are allocated allowances based on the units' prior
year emissions.
States may establish in their SIP submissions a different
NOX allowance allocation methodology that will be used to
allocate allowances to sources in the States if certain requirements
are met concerning the timing of submission of units' allocations to
the Administrator for recordation and the total amount of allowances
allocated for each control period. In adopting alternative
NOX allowance allocation methodologies, States have
flexibility with regard to:
1. The cost to recipients of the allowances, which may be
distributed for free or auctioned;
2. The frequency of allocations;
3. The basis for allocating allowances, which may be distributed,
for example, based on historical heat input or electric and thermal
output; and
4. The use of allowance set-asides and, if used, their size.
Kentucky has chosen to replace the provisions of the CAIR
NOX annual and CAIR NOX ozone season model
trading rules concerning the allocation of NOX annual and
ozone season allowances with its own methodology. Kentucky has chosen
to distribute 98% of its NOX annual allowances based upon
adjusted heat input. In Kentucky's final CAIR SIP submittal, Kentucky
already made initial allocations for the control periods spanning from
2009 to 2014. In 2009, Kentucky will submit one-year allocations for
the 2015 control period, and for every control period thereafter
Kentucky will continue to submit allocations six years in advance. For
example, in 2010, one-year allocations will be made for the 2016
control period; in 2011, one-year allocations will be made for the 2017
control period, etc. The remaining 2% of Kentucky's allowances will be
held and sold as needed by the Commonwealth of Kentucky, with the
proceeds to be deposited into Kentucky's general fund.
E. Allocation of NOX Allowances From the Compliance
Supplement Pool
The CAIR establishes a compliance supplement pool (CSP) to provide
an incentive for early reductions in NOX annual emissions.
The CSP consists of 200,000 CAIR NOX annual allowances of
vintage 2009 for the entire CAIR region, and a State's share of the CSP
is based upon the projected magnitude of the emission reductions
required by CAIR in that State. States may distribute CSP allowances,
one allowance for each ton of early reduction, to sources that make
NOX reductions during 2007 or 2008 beyond what is required
by any applicable State or Federal emission limitation. States also may
distribute CSP allowances based upon a demonstration of need for an
extension of the 2009 deadline for implementing emission controls.
The CAIR annual NOX model trading rule establishes
specific methodologies for allocations of CSP allowances. States may
choose an allowed, alternative CSP allocation methodology to be used to
allocate CSP allowances to sources in the States.
Kentucky has chosen to modify the provisions of the CAIR
NOx annual model trading rule concerning the allocation of
allowances from the CSP. Kentucky has chosen to distribute CSP
allowances using an allocation methodology that continues to reward
early reductions, but hinges on heat input data. Initially, the portion
of the CSP that is available to a given source is determined by the
following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC07.000
Where: ERCU is the Early Reduction Credit available to
the unit, BHIU is the Baseline Heat Input of the unit,
BHIT is the Baseline Heat Input from all sources within
Kentucky, and CSPT is 14,935 tons, the Early Reduction
Credits available pursuant to 40 CFR 96.143(a).
Kentucky also makes available portions of the CSP for units that
are able to demonstrate need, in a manner that is identical to 40 CFR
96.143(c). Remaining credits are then distributed on a pro rata basis,
up to the total early reduction credits requested pursuant to 40 CFR
96.143(b), to those CAIR NOX units with early reduction
credits that exceeded the amount of credits made available by the
previous calculation.
F. Individual Opt-In Units
The opt-in provisions of the CAIR SIP model trading rules allow
certain non-EGUs (i.e., boilers, combustion turbines, and other
stationary fossil-fuel-fired devices) that do not meet the
[[Page 56627]]
applicability criteria for a CAIR trading program to participate
voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may
opt into one or more of the CAIR trading programs. In order to qualify
to opt into a CAIR trading program, a unit must vent all emissions
through a stack and be able to meet monitoring, recordkeeping, and
recording requirements of 40 CFR part 75. The owners and operators
seeking to opt a unit into a CAIR trading program must apply for a CAIR
opt-in permit. If the unit is issued a CAIR opt-in permit, the unit
becomes a CAIR unit, is allocated allowances, and must meet the same
allowance-holding and emissions monitoring and reporting requirements
as other units subject to the CAIR trading program. The opt-in
provisions provide for two methodologies for allocating allowances for
opt-in units, one methodology that applies to opt-in units in general
and a second methodology that allocates allowances only to opt-in units
that the owners and operators intend to repower before January 1, 2015.
States have several options concerning the opt-in provisions.
States may adopt the CAIR opt-in provisions entirely or may adopt them
but exclude one of the methodologies for allocating allowances. States
may also decline to adopt the opt-in provisions at all.
Kentucky has chosen to allow non-EGUs meeting certain requirements
to opt into the CAIR NOX annual trading program, including
both of the opt-in allocation methods in the model rule.
Kentucky has chosen to allow non-EGUs meeting certain requirements
to opt into the CAIR NOX ozone season trading program,
including both of the opt-in allocation methods in the model rule.
Kentucky has chosen to allow certain non-EGUs to opt into the CAIR
SO2 trading program, including both of the opt-in allocation
methods in the model rule.
VI. Final Action
EPA is approving Kentucky's full CAIR SIP revision submitted on
July 19, 2007. Under this SIP revision, Kentucky is choosing to
participate in the EPA-administered cap-and-trade programs for
SO2, NOX annual, and NOX ozone season
emissions. The SIP revision (interpreted and clarified as discussed
above) meets the applicable requirements in 40 CFR 51.123(o) and (aa),
with regard to NOX annual and NOX ozone season
emissions, and 40 CFR 51.124(o), with regard to SO2
emissions. Further, Kentucky has agreed to make the technical
corrections to certain provisions as discussed above. Therefore, EPA
has determined that the SIP as revised will meet the requirements of
CAIR. As a consequence of the SIP approval, the Administrator of EPA
will also issue, without providing an opportunity for a public hearing
or an additional opportunity for written public comment, a final rule
to withdraw the CAIR FIPs concerning SO2, NOX
annual, and NOX ozone season emissions for Kentucky. This
action will delete and reserve 40 CFR 52.940 and 40 CFR 52.941.
EPA is approving the aforementioned changes to the SIP. EPA is
publishing this rule without prior proposal because the Agency views
this as a noncontroversial submittal and anticipates no adverse
comments. However, in the proposed rules section of this Federal
Register publication, EPA is publishing a separate document that will
serve as the proposal to approve the SIP revision should adverse
comments be filed. This rule will be effective December 3, 2007 without
further notice unless the Agency receives adverse comments by November
5, 2007.
If the EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on December 3, 2007 and no
further action will be taken on the proposed rule.
VII. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
[[Page 56628]]
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 3, 2007. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects 40 CFR Part 52
Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.
Dated: September 21, 2007.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart S--Kentucky
0
2. In Sec. 52.920(c) Table 1 is amended under Chapter 51 by adding in
numerical order the entries for ``401 KAR 51.210,'' ``401 KAR 51.220,''
and ``401 KAR 51.230'' to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
Table 1.--EPA Approved Kentucky Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanation
date
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
401 KAR 51.210.................. CAIR NOX Annual Trading Program............ 2/2/2007 10/4/2007 [Insert citation of
publication].
401 KAR 51.220.................. CAIR NOX Ozone Season Trading Program...... 6/13/2007 10/4/2007 [Insert citation of
publication].
401 KAR 51.230.................. CAIR SO2 Trading Program................... 2/2/2007 10/4/2007 [Insert citation of
publication].
* * * * * * *
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[FR Doc. E7-19327 Filed 10-3-07; 8:45 am]
BILLING CODE 6560-50-P